County tables railroad contract

May 6, 2003

By Jack King

The Curry County Commission tabled discussion on a proposed contract with Burlington Northern Santa Fe railroad at its meeting Tuesday, saying more negotiations with the railroad are needed before it can approve the contract.
Commissioners voted April 15 to close a railroad crossing at Wheaton Street, which would allow BNSF to build three new holding lines west of Martin Luther King, Jr. Boulevard, part of a proposed $15 million expansion of its railroad yard in Clovis. But the commission made its approval contingent on BNSF signing a contract with the county that would include several economic development and safety guarantees.
In moving to table the discussion, County Commissioner Kathrynn Tate said she didn’t feel the railroad’s response to a version of the proposed contract was adequate.
County Attorney Stephen Doerr told the commission he sent a draft of the contract to BNSF’s lawyers shortly after the April 15 meeting and received a copy containing the lawyers’ proposed changes Friday.
Copies of the contract Doerr provided the commission contained those parts of the draft the BNSF attorneys had struck out and the changes they had inserted.
Among the sections struck out by the BNSF attorneys is that stating the railroad will complete its expansion in the approximate amount of $15 million and will provide 80 new jobs at a payroll of $6 million a year.
Also struck:
— that the railroad will buy or acquire rights of way for the six new holding lines, particularly the right of way necessary for the lines west of MLK;
— sections stating BNSF will provide 10 percent of the cost of an overpass on New Mexico Highway 467;
— that the railroad will proceed in good faith to obtain city of Clovis Industrial Development Tax Pool funds of $10,000 for each new job it creates and will donate those funds to the overpass construction.
— a section stating the railroad will institute and maintain safety measures to provide for the safety of individuals in Curry County south of the railroad tracks, including a telephone hotline to allow fire and medical personnel to call for clear tracks and the railroad regulating traffic to ensure that the railroad crossing at Brady Street is open between the hours of 6 a.m. to 3 a.m. and 3 p.m. to 6 p.m.
Inserted into the contract by BNSF attorneys are passages stating the county will permanently abandon Wheaton Street from County Road 9.5 to the railroad crossing, that the railroad agrees to pay the county $5,000 for the cost of barricades and signs required for the closure, and that BNSF will provide 10 percent of the cost of the New Mexico Highway 467 overpass construction, but not to exceed $400,000.
Larry Delaney, BNSF’s manager of public projects, told the commission the cuts and insertions represent a first attempt by BNSF attorneys to negotiate over language in the contract.
“BNSF intends to build the project exactly as we described. Some of the language in the agreement, although it’s exactly as we intend to do, is tantamount to a guarantee and our lawyers have a real problem with guarantees,” he said.
“What is ‘approximately’ (in the agreement),” he asked. “If we spend only $12 million and provide only 70 jobs, are we liable? We intend to do this safety agreement. If someone gets hurt because an emergency vehicle can’t get through, are we liable?” he asked.
Delaney said BNSF already has begun preparations to build the yard extensions in Curry County, bringing in dirt and equipment for the earthwork.
“We’re going to do it. I just hope we won’t fail to negotiate the language,” he said.
Commissioner Ed Perales told Delaney the railroad’s rejection of the contract’s safety agreement was a problem for him.
“When I saw you had crossed out the safety section, I ‘x-ed’ the contract,” he said.
Commissioner Pete Hulder told Delaney he understood the proposed overpass is not guaranteed, but asked if the railroad would help build an underpass at the MLK crossing. Delaney said BNSF normally avoids such projects because of their excessive cost.
Commissioner Albin Smith, who said he lives in the Curry County area affected by the construction, told Delaney he has not had long waits at the Brady Street crossing since BNSF instituted its safety plan, which is now in effect. He added that he is not in favor of making “unreasonable demands” on the railroad.